United States of America v. Bryan Scott Schray

*The Honorable John Corbett O’M eara, United States District Judge
for the Eastern District of Michigan, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0308P (6th Cir.)
File Name: 04a0308p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRYAN SCOTT SCHRAY,
Defendant-Appellant.
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No. 03-1136
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00196—Richard A. Enslen, District Judge.
Submitted: June 25, 2004
Decided and Filed: September 10, 2004
Before: KEITH and CLAY, Circuit Judges; O’MEARA,
District Judge.*
_________________
COUNSEL
ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for
Appellant. B. Rene Shekmer, ASSISTANT UNITED
2 United States v. Schray No. 03-1136
STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant, Bryan Scott Schray,
appeals a January 10, 2003 judgment of the United States
District Court for the Western District of Michigan,
sentencing Defendant to 120 months imprisonment for
manufacturing more than one thousand marijuana plants, in
violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(vii).
For the reasons set forth below, we VACATE the sentence
and REMAND for re-sentencing.
BACKGROUND
On August 14, 2002, Defendant, represented by counsel,
entered into a written waiver of the indictment requirement
for the charges of having manufactured more than one
thousand marijuana plants, in violation of 21 U.S.C.
§ 841(a)(1) and § 841(b)(1)(A)(vii). On the same day,
Defendant entered into a plea agreement admitting that on or
about June 17, 2002, in Ingham County, in the Western
District of Michigan, Defendant committed the offenses with
which he was charged.
On December 23, 2002, the government made a motion for
a downward departure under U.S. SENTENCING GUIDELINES
MANUAL (“U.S.S.G.”) § 5K1.1, based on Defendant’s
substantial assistance to the government in the investigation
of others. Defendant later made a separate motion for
downward departure based upon his rehabilitation, although
no guidelines provision provided for such a departure. See
18 U.S.C. § 3553(b)(1) (allowing for departure from the
guidelines, where “the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a

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No. 03-1136 United States v. Schray 3
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines”).
On January 10, 2003, the district court held a sentencing
hearing. After hearing arguments in favor of the requested
departures, the district court declined to grant a downward
departure. On the same day, the district court entered
judgment, sentencing Defendant to a prison term of 120
months.
On January 17, 2003, Defendant filed a timely notice of
appeal.
DISCUSSION
Defendant’s appeal relates only to the denial of the
government’s motion for a downward departure. Defendant
raises two issues. First, Defendant contends that the district
court erred as a matter of law in concluding that its only
options were to deny the downward departure or to sentence
Defendant within the federal sentencing guidelines range.
Secondly, Defendant argues that the district court’s
articulated reasons for denying the departure were not
consistent with the sentencing guidelines provisions relating
to substantial assistance. Because we find Defendant’s first
claim to be meritorious, we decline to address the second
issue.
The sole issue for review, then, is whether the district court
erred as a matter of law in assessing its sentencing options.
“A district court’s legal conclusions regarding the application
of the sentencing guidelines are reviewed de novo.” United
States v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002) (citation
omitted).
Defendant argues that the district court wrongly assessed its
sentencing options, stating that it was not authorized to issue
a sentence beneath the statutory minimum but above a
4 United States v. Schray No. 03-1136
1During the sentencing hearing, Defendant did not ob ject to this
statement. However, the lack of an objection is of no consequence,
because Defendant never had an opp ortunity to object. Prior to
sentencing, Defendant lacked notice of the district court’s understanding
of its sentencing options. At sentencing, Defenda nt was not given the
opp ortunity to object after the district court stated its sentencing decision.
FED. R. CRIM . P. 51(b) (“If a party does not have an opportunity to object
to a ruling or order, the absence of an objection does not later prejudice
that party.”); United States v. Bostic, 371 F.3d 865, 871-72 (6th Cir. 2004)
(two prior cases in this Circuit have held that there wa s no oppo rtunity to
object where “the aggrieved party did not have notice of the issue prior to
district court’s pronouncement of the sentence, and the district court d id
not give the aggrieved party an opportunity to object after it pronounced
the sentence”) (citing United States v. Breeding, 109 F.3d 308 , 310 (6th
Cir. 19 97); United States v. Hickey, 917 F.2d 90 1, 906 (6th Cir. 1990)).
separate range specified by the guidelines. At the sentencing
hearing, the district court stated:
The [government’s] motion requests no reduction in the
guideline scoring, but does request the Court relieve the
mandatory minimum sentence of 120 months. The
request, if granted, would reduce the sentence from 120
months to somewhere in the guideline range of about 63
to 78 months.
(J.A. at 149.)1 The figures in the district court’s statement
derive from separate sources. The Probation Department’s
Presentence Investigation Report found that the federal
sentencing guidelines would mandate a sentence in the range
of sixty-three to seventy-eight months, based on Defendant’s
criminal history category of II, and the total offense level of
25. There was a separate statutory mandatory minimum
sentence of 120 months, for Defendant’s offense, under
21 U.S.C. § 841(b)(1)(A)(vii).
The district court’s statement expressed an understanding
that the court faced a choice between the statutory mandatory
minimum and the federal sentencing guidelines range. Under
this view, if the district court had granted a downward

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No. 03-1136 United States v. Schray 5
2(J.A. at 20) (the motion for a downward departure stated, “the
Governm ent requests and recommendations release of the 10 year
statutory minimum”); (J.A. at 132) (at the sentencing hearing, the
government simply stated, “I . . . believe that the release of the mandatory
minimum would still provide sufficient punishment for this defendant.”);
(J.A. at 174) (the Presentence Investigation Report (“PIR”) stated that
based on the sentencing guidelines “the guideline range for imprisonment
is 63 to 78 m onths. However, pursuant to U.S.S.G. § 5G1.1(c)(2), the
guid eline for imprisonment becomes 120 months.”) (emphasis added);
(J.A. at 176) (the PIR stated, “P ursuant to the written plea agreement, the
government will determine if a downward departure will be recommended
. . . .”).
departure from the statutory mandatory minimum (120
months), then the district court would have been prohibited
from issuing a sentence greater than the guidelines range’s
maximum (seventy-eight months). The district court stated
that it had to choose between two alternatives: a sentence of
120 months (which was ultimately imposed) or a sentence in
the range of sixty-three to seventy-eight months (if the
departure were granted). The district court indicated that it
lacked authority to impose a sentence in the intermediate
range of seventy-eight to 120 months.
The government argues that the district court’s statement
did not reflect the district court’s understanding of the law
but, rather, merely restated the government’s proposed
request for a departure; yet this argument is unpersuasive.
The government never requested a sentence within the
guidelines range (of sixty-three to seventy-eight months);
rather, the government simply requested a departure below
the 120-month statutory minimum.2 Moreover, the
government does not have the ability to request anything
more than a departure; the extent of the departure is governed
by the district court’s discretion, as bounded by applicable
law. The government cannot impose conditions on a motion
for a departure. We have no reason to doubt that the district
court’s statement reflected its own understanding of the law.
6 United States v. Schray No. 03-1136
The district court’s understanding of the law was contrary
to United States v. Stewart, 306 F.3d 295 (6th Cir. 2002). In
Stewart, the district court sentenced the defendant below the
statutory minimum but above the guidelines range–i.e., the
district court granted a sentence of the sort that the district
court in the instant case had believed it was prohibited from
granting. The defendant appealed, arguing that–consistent
with the district court’s understanding in the instant case–after
the departure was granted, a sentence within the guidelines
range was required. Id. at 331. But this Court held that it was
permissible for the district court to sentence the defendant to
anything beneath the statutory minimum; the term can exceed
the guidelines range. Id. at 332 (“[W]e now . . . hold that the
appropriate starting point for calculating a downward
departure under 18 U.S.C. § 3553(e) is the mandatory
minimum sentence itself.”). Applying Stewart to the instant
case, if Defendant’s motion for a downward departure had
been granted, then the district court would have been
permitted to sentence Defendant to anything under 120
months (i.e., the statutory minimum). In granting the
downward departure, the district court would not have been
forced to sentence Defendant within the range of sixty-three
to seventy-eight months (i.e., the guidelines range that would
have applied, absent the statutory minimum). The district
court’s statement was contrary to Stewart.
The question, then, becomes whether this Court has
jurisdiction to review the district court’s denial of the
downward departure. The statute governing appellate
jurisdiction contains language that covers the present case:
this Court has jurisdiction to determine whether a sentence
“was imposed as a result of an incorrect application of the
sentencing guidelines.” 18 U.S.C. § 3742(a)(2).
As stated in United States v. Smith, 278 F.3d 605, 609 (6th
Cir. 2002), “[a] district court’s denial of a downward
departure can be reviewed by this Court only if the district
court incorrectly believed that it lacked the authority to grant
such a departure as a matter of law.” The government argues

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No. 03-1136 United States v. Schray 7
that the district court’s awareness of its ability to impose a
sentence below the statutory minimum but above the
guidelines range was evinced by the district court’s citation of
United States v. Snelling, 961 F.2d 93 (6th Cir. 1991) (per
curiam). However, in Snelling, the relevant issue that this
Court dealt with was whether there is a lower limit on the
sentence that the district court can impose where a departure
is granted; this Court ruled that the bounds of the pertinent
statute and reasonableness impose a lower limit. Id. at 96-97.
Yet the instant case deals with a different issue–the upper
limit on the sentencing range, where a departure is granted.
(In the instant case, the district court wrongly perceived that
if it had granted a departure, then the upper limit on the
sentence would have been seventy-eight months.) This issue
was not dealt with in Snelling; thus, the Stewart case (decided
more than a decade after Snelling) correctly stated that the
issue of the upper limit was “an issue of first impression in
this Circuit.” Stewart, 306 F.3d at 331. Moreover, in the
instant case, the district court’s citation to Snelling could not
possibly have shown awareness of the correct principle of
law, because (as explained above) the district court’s
statement of law was contrary to Stewart.
In the present case, the district court “incorrectly believed
that [as a matter of law] it lacked the authority to grant . . . a
departure,” in the form of a sentence beneath 120 months but
more than seventy-eight months. Smith, 278 F.3d at 609.
This Court has jurisdiction to review the denial of a
downward departure where the district court was aware of its
authority to depart but was unaware of the full scope of this
authority–as was the case here, where the district court
erroneously believed that it would have lacked authority to
issue a sentence above the sentencing guidelines range, if a
downward departure from the statutory minimum had been
granted.
In federal sentencing: “[o]nce the court of appeals has
decided that the district court misapplied the Guidelines, a
remand is appropriate unless the reviewing court concludes,
8 United States v. Schray No. 03-1136
on the record as a whole, that the error was harmless, i.e., that
the error did not affect the district court’s selection of the
sentence imposed.” United States v. Hopkins, 295 F.3d 549,
553 (6th Cir. 2002) (citing Williams v. United States, 503
U.S. 193, 203, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992)).
There is no basis for a conclusion that the error was
harmless, in the instant case. In denying the motion for a
downward departure, the district court acknowledged that
Defendant had provided assistance, though the district court
ultimately concluded that Defendant’s extensive drug dealing
and violent tendencies outweighed this consideration. (J.A.
at 149-50) (“In this case, the defendant’s assistance, although
valuable to the plaintiff, provides strong reasons why the
public should be protected from this individual.”). Hence,
there is a possibility that the district court’s ultimate
conclusion was influenced by its misunderstanding of its
sentencing options. For instance, the district court may have
felt that Defendant’s “valuable” assistance justified a
departure to a sentence of 115 or 105 months, but no shorter
sentence than that. In such a scenario, the district court would
have thought that it was prohibited from granting what it
deemed to be the most appropriate sentence, wrongly
believing that it had to choose between the alternatives of a
120-month sentence or a sentence within the range of sixty-
three to seventy-eight months. The lengthier sentence would
have appeared to be the more appropriate of the options,
being closer to the district court’s optimal sentence. In light
of the possibility that the district court’s error influenced its
sentencing decision, there is no basis for us to conclude that
the error was harmless. Thus, a remand is required.
CONCLUSION
For the aforementioned reasons, we VACATE the sentence
and REMAND the case for re-sentencing in a manner
consistent with this opinion.

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